EEOC Issues Enforcement Guidance on Retaliation and Related Issues

In late August 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued Enforcement Guidance on Retaliation and Related Issues, a sub-regulatory document that addresses the Commission’s interpretation of the law related to retaliation in the workplace. The enforcement guidance replaces previous guidance issued by the EEOC in 1998.

As defined by the Commission in the enforcement guidance, retaliation occurs when an employer takes a materially adverse action against an individual because they have engaged in, or may engage in, activity in furtherance of the equal employment opportunity (EEO) laws the Commission enforces. These laws include:

Title VII of the Civil Rights Act of 1964 (Title VII),

The Age Discrimination in Employment Act (ADEA),

Title V of the Americans with Disabilities Act (ADA),

Section 501 of the Rehabilitation Act (Rehabilitation Act),

The Equal Pay Act (EPA), and

Title II of the Genetic Information Nondiscrimination Act (GINA).

The anti-retaliation provisions of the various EEO laws ensure that individuals are free to raise complaints of potential violations or engage in other EEO activity without facing an adverse action as a result. As stated in the enforcement guidance, protected activity generally consists of either participating in an EEO process (such as filing a Charge with the Commission or serving as a witness in a proceeding) or opposing conduct made unlawful by an EEO law (such as making an internal complaint or voicing opposition to discriminatory practices).

In light of the new guidance, employers should be mindful of the following:

Retaliation is the most common charge. According to the enforcement guidance, the percentage of EEOC private sector and state and local government charges alleging retaliation has doubled since 1998. Retaliation is the most frequently alleged basis of discrimination in all sectors.

An employer can be found to have retaliated even if the underlying complaint was meritless. A retaliation claim based on opposition is not defeated merely because the underlying challenged practice ultimately is found to be lawful. However, for statements or actions to be protected opposition, they must be based on a reasonable good faith belief that the conduct opposed violates the EEO laws or could do so if repeated. With respect to participation in the EEO process, an individual can make a successful retaliation claim even if the underlying Charge is not meritorious or was not timely filed.

Retaliatory harassment does not have to be “severe and pervasive” in order to be illegal. Retaliatory conduct is often characterized as “retaliatory harassment” in cases where there is no adverse employment action (such as a termination or demotion) taken as a result of the protected activity. Retaliatory harassing conduct can violate the law even if it is not severe and pervasive enough to alter the terms and conditions of employment. So long as the conduct would be enough to deter protected activity in the given context, it can be actionable retaliation.

Employees do not become insulated from all adverse employment actions after making discrimination complaints or engaging in protected activity. In the enforcement guidance, the EEOC acknowledged, “The anti-retaliation protections does not mean that employees can immunize themselves from consequences for poor performance or improper behavior by raising an internal EEO allegation or filing a discrimination claim with an enforcement agency. Employers remain free to discipline or terminate employees for legitimate, non-discriminatory, non-retaliatory reasons, notwithstanding any prior protected activity.” Therefore, it is critical that employers properly document and attempt to correct poor performance and improper behavior on a consistent basis in order to support taking adverse employment actions against employees who have engaged in prior protected activity.

Lack of knowledge of the employee’s protected activity is a complete defense. The EEOC noted that a common defense to retaliation claims is the decisionmaker’s lack of awareness of the protected activity. Retaliation cannot be shown where the decisionmaker was unaware of the protected activity, because the employee cannot establish a causal connection between his or her protected activity and the action taken. In order for employers to avail themselves of this defense, managers who receive complaints should not publicly discuss the complaint or share information about the EEO activity with any other managers or subordinates. All information regarding EEO activity/complaints should be shared only on a need-to-know basis and should be properly investigated and handled by appropriate human resources personnel.

The enforcement guidance outlined several “promising practices” that may reduce the risk of violations. These practices include:

Written Policies

Employers should maintain a written, plain-language anti-retaliation policy, and provide practical guidance on the employer’s expectations with user-friendly examples of how to handle EEO activity.

Training

Employers should train all managers, supervisors, and employees on the employer’s written anti-retaliation policy.

Anti-Retaliation Advice and Individualized Support for Employees, Managers, and Supervisors

According to the EEOC, an automatic part of an employer’s response and investigation following EEO allegations should be to provide information to all parties and witnesses regarding the anti-retaliation policy, how to report alleged retaliation, and how to avoid engaging in it. As part of this debriefing, managers and supervisors alleged to have engaged in discrimination should be provided with guidance on how to handle any personal feelings about the allegations when carrying out management duties or interacting in the workplace.

Proactive Follow-Up

The EEOC encourages employers to check in with employees, managers, and witnesses during the pendency of an EEO matter to inquire if there are any concerns regarding potential or perceived retaliation, and to provide guidance.

Review of Employment Actions to Ensure EEO Compliance

The EEOC proposed that employers consider having a human resources or EEO specialist, counsel, or other individual review proposed employment actions of consequence to ensure they are based on legitimate non-discriminatory, non-retaliatory reasons. These reviewers should require decision makers to identify their reasons for taking consequential actions, and ensure that necessary documentation supports the decision.

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